How far does an employer have to go to find out if an employee is disabled?

The Court of Appeal recently had to decide whether an employer had taken reasonable steps to find out if an employee was disabled. Deciding whether or not someone is disabled is a crucial step for employers in order to comply with the legal requirements of the Equality Act 2010.

Background

The Equality Act 2010 requires employers to make reasonable adjustments for disabled employees. But, if an employer does not know that an employee is disabled then the duty does not arise; an employer cannot be expected to make adjustments for someone it doesn’t know is disabled.

However, an employer cannot just bury its head in the sand and ignore the possibility that someone may be disabled in order to avoid its legal obligation to make reasonable adjustments, the duty will arise where an employer knows or, could reasonably have been expected to know, of an individual’s disability (constructive knowledge).

Latest case

In Donelien v Liberata UK Ltd Ms Donelien had been dismissed by her employer, Liberata, after persistent short-term sickness absences. Many of these absences were for colds, viral infections, stress and anxiety.

After the dismissal, Ms Donelien brought a number of claims against Liberata, including disability discrimination and failure to make reasonable adjustments.

An employment tribunal found that, although Ms Donelien was disabled at the date of her dismissal, she was not disabled at the time Liberata’s occupational health (OH) advisers were assessing her. It therefore rejected dismissed Ms Donelien’s claim of disability discrimination on the basis that her employer had taken reasonable steps to get to the bottom of her health situation before reaching its decision to terminate her employment.

The Employment Appeal Tribunal rejected Ms Donelien appeal, and the case then reached the Court of Appeal.

Court of Appeal decision

Importantly, the Court of Appeal’s job was not to decide whether Liberata could or should have done more for Ms Donelien, but to determine what it could reasonably have been expected to know as regards her potential disability.

The Court ruled that the employer had indeed taken reasonable steps to understand whether Ms Donelien was disabled. Rather than just agree with its OH advisers’ view that she wasn’t disabled at the time, Liberata went back to OH for clarification, considered letters from Ms Donelien’s GP and held return to work meetings before making its decision. Based on all this, the Court agreed that the employer had no constructive knowledge of any disability at the time.

What does this mean for employers and individuals?

Given that the duty to make reasonable adjustments only arises when an employer knows someone is disabled, whether or not the employer has constructive knowledge (i.e. it could reasonably be expected to know) of an individual’s disability is likely to be a vital question in many cases.

The legal definition of “disability”: an impairment which has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities is broader than the lay person might understand it to be. Given this, it is often a complicated issue to decide if someone is disabled.

However, this is ultimately a question for the employer to answer and the law requires them to give it proper consideration and make up their own mind on whether an employee is disabled, rather than relying uncritically on a medical opinion from a doctor or occupational health adviser – it should not just “rubber stamp” what the medical report says and follow it exclusively, even where it appears to be a reasoned assessment.

As in this case, where reasonable steps have been taken by an employer to determine whether an employee has a disability it will be difficult to argue that the employer had constructive knowledge of disability.

Comment

Employees would be well advised to co-operate with their employer, for example by submitting to medical examinations and providing medical evidence to support an assertion that they are disabled within the meaning of the Equality Act 2010.